Positive contingencies outweigh negative, court finds when assessing damages for future income loss

Plaintiff shows residual earning capacity, may return to full-time work in minimum wage job: court

Positive contingencies outweigh negative, court finds when assessing damages for future income loss

The B.C. Supreme Court has found that the positive contingencies affecting the plaintiff’s future income-earning capacity cancelled the negative contingencies when it was assessing the amount of damages to award for future loss of income.

Binning v Kandola, 2021 BCSC 157 involved a motor vehicle accident in Vancouver in January 2016. The plaintiff was driving his van northbound on a street, while the defendant ran a stop sign and entered the intersection of the street and an avenue. The rear driver’s side of the defendant’s truck collided with the front bumper of the plaintiff’s van, with the impact causing the airbags in the plaintiff’s van to deploy. The defendant fled the scene.

The plaintiff, currently 57 years old, was the sole owner of Binning Development Ltd., a business that involved physically demanding work. He had a grade 10 education, limited English language proficiency and transferable skills and a history of doing only physical work. After the accident, he experienced pain in his neck, right shoulder, right knee and lower back, which caused him to take time off work and to undergo certain treatments, including rehabilitation therapy, physiotherapy and trigger point injections. The plaintiff eventually decided to stop working, after several failed attempts to return to work. In October 2019, an MRI scan’s findings included multilevel degenerative disc disease and bilateral sacroiliac joint disease.

The defendant admitted liability for the accident, so the action proceeded to trial on the damages issues. Regarding the issue of future loss of income, the Supreme Court of British Columbia considered the numerous contingencies impacting the plaintiff’s future income-earning capacity and determined that the positive contingencies cancelled the negative contingencies in this case.

The contingencies that the court considered included the following real and substantial possibilities: the plaintiff’s condition might significantly improve with treatment; he might return to full-time work sooner than expected and earn as much or more than before the accident; his degenerative spine condition might deteriorate more rapidly than anticipated; and his maladaptive emotional response to pain might prove resistant to treatment.

The court also considered that, even without the accident, the following real and substantial possibilities might have happened: the plaintiff’s pre-existing spine condition might have progressed faster if he had continued with his work; he might have re-aggravated his pre-accident back pain that impaired his ability to work; he might have stopped working or reduced the hours of work or found a different job; and he might have chosen not to work for an extended period because of the COVID-19 pandemic, considering his age and asthma.

The court recognized that the plaintiff faced significant barriers in finding work, such as his age, education, limited transferable skills, lost strength, and emotional challenges. However, the court found that the plaintiff showed residual capacity to work when he oversaw a complex construction project and that he had connections to builders, developers, and general contractors in his community. There was a real and substantial possibility that he could return to full-time work in a light-strength or medium-strength minimum wage job, with the assistance of a vocational consultant, with physical reconditioning and with psychological counselling, the court decided.

On the issue of whether the plaintiff failed to mitigate his loss, the court said that, while the plaintiff should receive full income replacement for the 15 months following the accident, during which time he focused on his acute recovery, in the 34 months after that period, the plaintiff could have worked two to three hours a day in a light-duty minimum wage job. The court thus applied a 25 per cent discount for that 34-month period on account of the plaintiff’s failure to mitigate his loss.

The court therefore assessed damages in the following amounts: general damages at $95,000, special damages at $606, past income loss at $130,000, future income loss at $170,000 and future care costs at $9,380, which comprised amounts for physiotherapy, kinesiology sessions, a weight loss program, psychological counselling and vocational counselling.

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